Surrogacy in the UK

Our team of leading surrogacy lawyers can provide expert legal advice on UK surrogacy arrangements.

If you have or are considering creating your family through a UK (sometimes called “domestic”) surrogacy arrangement, it’s important to take legal advice to make sure you - and your partner if you have one - are recognised as the legal parents of your child.

We can help you understand the legal issues at any stage of your surrogacy journey whether it is before using a surrogate, during the pregnancy or after the birth of your child. 

What you need to know

Under UK law, the woman who gives birth (the surrogate) is the legal mother of the child. It is important to be aware that she is responsible for registering the child within six weeks of the birth. 

Who else is a legal parent will depend on whether the surrogate is married or in a civil partnership and, if she is single, whether fertility treatment took place at a licenced UK fertility clinic and what consent forms were signed.   

  • If she is married her husband will be the legal father 
  • If she is in a same-sex marriage or civil partnership, her wife or civil partner will be the other legal parent 
  • If she is unmarried, the intended father is often also the legal father (assuming he is the child’s biological father) 
  • However, if conception takes place at a fertility clinic in the UK someone else can be nominated as the second legal parent, for example an intended mother or a non-biological father.

Parental orders

The legal solution in the UK for resolving parenthood in surrogacy cases is a parental order. This is a court order which makes the intended parent(s) the legal parents of the child and permanently extinguishes the parenthood of the surrogate and her spouse. The intended parents must apply to the court for the order and a judge will assess their application. Once the order is made, the child’s birth will be re-registered to record the intended parents as the legal parents.  

A parental order is essential to ensure that intended parents are recognised as legal parents of their child and have parental responsibility for them.  

When making a parental order, the judge needs to be satisfied not only that making the order will be in the child’s best interests but that a number of specific criteria have been met: 

  • The intended parents (or at least one of them) are genetically related to the child.  
  • The child was carried by a surrogate as a result of assisted reproduction techniques (ie was not conceived naturally).  
  • Either there is one intended parent (eg a single parent) or if there are two intended parents they are married/in a civil partnership or in an enduring family relationship together (same-sex couples and co-parents are eligible to apply for parental orders as joint applicants. In some circumstances separated couples will still qualify as being in an enduring family relationship).  
  • Any intended parent must be over the age of 18.  
  • The child has their home with the intended parent(s) and at least one intended parent is domiciled in the UK, Channel Islands, or Isle of Man.  
  • The application is made within six months of the child being born (although the court has the discretion to extend this time limit).  
  • The surrogate and anyone else who is treated as a legal parent at birth has given consent to a parental order being made more than six weeks after the child’s birth.  
  • Any payments which were not for expenses reasonably incurred has been approved by the court.  

If intended parents do not obtain a parental order in the UK they will not be recognised as their child’s legal parents. We can help advise intended parents and surrogates to navigate the process of applying for a parental order and help legally protect parents. 

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Our family lawyers

Our fertility lawyers are recognised as experts in UK surrogacy law and act for intended parents and surrogates. Not only do our lawyers have an in-depth knowledge of the law but we take a solution-focused approach. With seven offices based around the country we can advise you wherever you are based.  

We are one of only a few firms who can offer a full service and can advise you on all aspects of surrogacy from parental orders to specialist wills.  

Our lawyers have acted in ground-breaking cases including acting for a surrogate mother in a UK surrogacy where the intended parents’ relationship had broken down during the pregnancy and at the time it was not possible for the intended parents to apply for a parental order. The child was made a ward of the court to ensure the intended mother could exercise parental responsibility for him. Eventually after the law changed the intended parents were able to successfully apply for a parental order when the child was age 3. This led to two reported cases Re F v M v SM [2017] EWHC 2176 (Fam) and Re A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam). 

Who do we work for?

We work with a huge range of clients from a variety of backgrounds, including:

  • Business owners, entrepreneurs and their partners
  • Farming families
  • High net worth and ultra-high net worth families
  • International families
  • Medical professionals
  • Professional and family trustees
  • People with a high profile in the entertainment industry
  • Senior management and other professionals
  • Sports people

Why choose surrogacy lawyers from Mills & Reeve?

  • We strive to offer an unrivalled client experience, keeping our values at the centre of our decision-making at all times.
  • We have a wealth of experience and expertise to provide you with practical advice relating to your case.
  • You'll find our offices in seven major cities across England, including London, Birmingham and Manchester.
  • We're recognised by prestigious legal bodies, including Legal 500, Law Society and Chambers and Partners.
  • Our family lawyers are members of Resolution, a national family justice organisation committed to finding non-confrontational methods of dealing with family law issues. Our work with them helps us to provide you with a conscientious, constructive, and cost-effective service. This defines our approach to everything we do.

We understand how important it is for you to realise the dream of having a child, which is why we want to help you get the legal proceedings right. By choosing fertility lawyers from Mills & Reeve, you'll be sure to experience a smooth and professional process and be taken care of by our expert team.

Resources

In this vlog, Caitlin Jenkins, the family law vlogger, introduces her colleague, Mills & Reeve's Rose-Marie Drury, one of the specialist children law experts at Mills & Reeve. They discuss the sort of work Rose-Marie does in supporting families and their children and her passion for supporting the reform of the law relating to Surrogacy in England & Wales.

In this vlog, Caitlin Jenkins, the familylawvlogger talks to her Mills & Reeve specialist children law colleague, Rose-Marie Drury, about Surrogacy. What is it? What should you think about if you are thinking of entering in to a Surrogacy arrangement?

Explaining family law podcast

Facing a family law issue and not sure what's involved? Our podcast is the right place to start.

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Family and children blog

Our family and children law blog provides practical advice and insight on a wide range of topics by our family and children lawyers.

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Navigating separation survey

Explore key findings from our YouGov survey on married individuals' views on family law issues and dispute resolution.

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What our clients say about us?

“Mills & Reeve have expertise in every area of children law.”

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“What Colin doesn't know about international children law isn't worth knowing.”

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“Zoe Fleetwood is a strong name in the children sphere and has a justified reputation as being a calm and effective advocate for her clients.”

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“An excellent stand-out team who regularly deal with the most difficult of cases.”

Legal 500

Our expertise

Surrogacy and fertility law
Assisted reproduction, fertility treatment, donor conception and co-parenting
Embryos on separation
International surrogacy

Surrogacy in the UK FAQs

It is very rare for genuine surrogacy arrangements to break down and for a surrogate to try and keep the baby. A surrogate (and if she has a spouse/civil partner) must provide their consent to a parental order being made six weeks after the child is born. If the surrogate and her spouse/partner refuse to provide their consent, then currently the court cannot make a parental order.

This does not stop the court making other orders about the child such as who the child should live with and who is able to exercise parental responsibility for that child (including on an urgent basis if a surrogate refuses to hand over the baby).  

Gestational surrogacy is where the surrogate conceives using a donor egg and therefore has no genetic connection to the child.  

Traditional surrogacy is where the surrogate’s own eggs are used to conceive the child.  

Once your child is born you will need to apply for a parental order to ensure you (and your partner if you have one) are recognised as your child’s legal parent and your surrogate and her spouse/civil partner’s status as legal parents are extinguished. Obtaining a parental order usually takes between 6-9 months.  

Yes. Many intended parents who have a UK surrogacy arrangement use close family members or friends as their surrogate. We recommend that you ensure whoever is your surrogate understands the legal consequences of a surrogacy arrangement including who will be treated as a legal parent at birth and that they will need to consent to a parental order being made after your child is born.  

Yes. However, any payments to your surrogate which are for more than expenses reasonably incurred will need to be approved by the court as part of your application for a parental order.  

A surrogacy agreement is usually a written agreement between the surrogate (and if she has a spouse/civil partner) and the intended parent(s) which sets out everyone’s expectations about entering into the arrangement and what everyone agrees to do. UK solicitors can commit a criminal offence if they charge for drafting a surrogacy agreement.

Surrogacy agreements are not enforceable in the UK but this does not prevent the court from making orders about who a child should live with and who has parental responsibility for a child.  

A parental order secures the legal status of intended parents under UK law - even if you are already named on your child's foreign birth certificate. Without a parental order, you will not be a legal parent in the UK. This has serious implications:   

  • You will not have legal authority to make basic decisions about your child's medical care or education and will need to both find and involve the surrogate in key decisions or any legal proceedings involving your child 
  • There can be problems with inheritance and pension rights  
  • There can be legal complications if you and your spouse or partner separate, divorce or one of you wants to move abroad  
  • There can be problems obtaining or renewing a British passport  
  • Social services may become involved 

Specialist legal advice is essential if you find yourself in this position. An adoption order is the closest alternative to a parental order. It extinguishes the surrogate parents’ responsibilities and gives permanent parental status to the intended parents.

However, the law and process are complicated because adoption law was not designed for surrogacy. Other options include a child arrangements order or a special guardianship order.  

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